Parks v. Burbank

Adams, J. 1. FRAUDULENT representations: evidence of equitable relief. The evidence shows very clearly that the property; .other than the notes received by the defendant, was worth as much as the hotel. We think also that ,, . , , . 1,11 it shows that the plaintift was drawn by the de- " fendant into such an unequal trade by false and fraudulent -representations. We shall not allude to all the representations alleged to be fraudulent, nor attempt to fully set out the evidence. To do so would extend the opinion beyond all proper limits, and serve no useful purpose. Each member of the court upon a separate reading of the evidence, has reached the conclusion that some, at least, of the allegations of fraud are proven. The first representations made were contained in a letter written by the defendant to the plaintiff, in which he stated that the hotel was located “on O. & N. W. and C., C., Dubuque & Minn. E. E.” The evidence shows that the abbreviations C. & N. W. E. E., were used to denote the Chicago & Northwestern Eailroad, and that it was not true, as stated, that the hotel was located on the Chicago & Northwestern Eailroad. But it is said that while the statement was not strictly true, it was substantially so, because it was true that the Chicago & Northwestern Eailroad Company operated a road running through the city of Lyons, and it was not material that the company’s road did not run 'through Lyons. [709] There is no evidence as to the importance' of the Chicago & Northwestern E. E. as compared with the road running through Lyons which was operated by the_Chicago & Northwestern E. E. Co., and we cáiinot, therefore, go into any inquiry upon that point. Tn the defendant’s letter to the plaintiff the O. & N. W. E. E. and the O., C., Dubuque & Minn. E. E. were spoken of as distinct roads, and the representation was that they both ran through Lyons. This was false and fraudulent and intended to deceive in a material point, the importance of Lyons as a railroad center or'junction. If there, had been any evidence that the O., C., D. & M. road was not the road operated by C. & N. W. E. E. Co., but another road not mentioned, there would be some little ground for contending that the defendant’s departure from the truth was not material, but there is no such evidence, and ho such suggestion or pretense. Again in the same letter the defendant, speaking of the hotel uses these words: “Has cleared over $100 per month on average for past three years while I have owned and run it.” The evidence upon this point is not entirely without conflict, but we are satisfied, taking it altogether, that the hotel had not cleared that amount, and could not be expected to, in view of its character and location by any kind of management. 2. — : — : — : compromise. We come next to inquire whether the plaintiff, after he discovered the defendant’s fraud, made a settlement whereby he precluded himself thereafter from asserting the fraud. Certain correspondence took place- in which the plaintiff claimed that he had been greatly injured by the trade. It appears that a part of the consideration agreed to be given by the. plaintiff to the defendant was a team and wagon. The plaintiff insisted that he ought to be allowed to keep the team and wagon, and we have to say that we do not see any ground upon which such claim by the plaintiff was based except the unfairness of the trade into which he had been drawn. The correspondence shows that [710] the defendant threatened to replevy the team and wagon; but finally in one of his letters he said “ To avoid costs and trouble you may keep the team if you will send me a draft for $100.” The plaintiff then offered somewhat less than that amount which was not accepted. After variours negotiations which proved abortive, the defendant wrote to the plaintiff in these words: “ I withdraw all my offers and propositions about the team.” > The plaintiff then wrote to the defendant offering to give the defendant one month’s rent of the hotel, which it is shown was $50, and a secured note for $50, saying that that would make up the defendant’s proposition of $100. The defendant wrote the plaintiff that he would instruct his agent to deliver the team to the plaintiff, if he would send him the note as suggested, and sign an order which was inclosed in the letter. What' the order was does- not appear. It is sufficient to say that whatever it was the plaintiff did not sign it, but drew an order himself on the tenant of the hotel and sent it to the defendant, and the defendant refused to accept it, and so notified the plaintiff on the 8th day of March, 1880. Here the negotiations appear to have ended, and on the 7th day of May following, the plaintiff brought this action for the cancellation of the notes. We do not think then that there was any settlement that could be deemed to preclude the plaintiff from maintaining the action. ArPIPvMED.